Transport Workers Union v Air Pacific Limited [2004] FJAT 20; Award 13 & 14 of 2004 (11 May 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NOS. 13 AND 14 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTES BETWEEN

TRANSPORT WORKERS UNION

AND

AIR PACIFIC LIMITED

TWU: Mr A Singh
Air Pacific: Ms G Phillips

DECISION

This Award deals with two reported disputes between the Transport Workers Union (the "Union") and Air Pacific Limited (the "Employer") concerning the location of meal/rest seats for cabin crew on the B747-400 aircraft.

On 12 February 2003 a trade dispute was reported by the Employer to the Ministry of Labour and shortly thereafter the Union also reported a trade dispute. The Permanent Secretary for Labour accepted both reports. In due course the Minister authorized the Permanent Secretary to refer the disputes to the Arbitration Tribunal for settlement pursuant to the provisions of the Trade Disputes Act Cap.97.

The Dispute reported by the Employer was referred to the Permanent Arbitrator with the following terms of reference:

"... for settlement over the disagreement between the Company and the Union on the meal/rest seats on Air Pacific’s two leased B747-400 aircraft to be introduced into service in April and June 2003".

The Dispute reported by the Union was referred to the Permanent Arbitrator with the following terms of reference:

"for settlement over breach of clause 18.4.6 of the Collective Agreement".

The Disputes were listed for mention on 23 July 2003. On that day the parties were directed to file preliminary submissions by the end of September with any necessary replies within 14 days thereafter. The Disputes were listed for hearing on 28 and 29 October 2003 respectively. At the request of the Union those dates were vacated and the Disputes were relisted for hearing on 22 and 23 January 2004 respectively. The parties filed preliminary submissions prior to the commencement of the hearing.

When the hearing commenced on 22 January 2004 the parties agreed that the disputes would be heard together thereby preventing the absurdity of the same evidence being repeated on day two. The two disputes relate to the same issue and the preliminary submissions in relation to each dispute were almost identical.

During the hearing the Employer called two witnesses, Mr Phil Sproul, Manager Technical Services and Mr Aisake Komailevuka, General Manager Customer Relations and Services. The Union called one witness, Mr Banati Sefeti a Senior Flight Attendant and currently branch secretary of the Cabin Crew Branch of the Union.

At the conclusion of the hearing the parties requested time to file final written submissions. The Employer filed final submissions on 12 February and the Union filed its final submissions on 17 March 2004. The Employer filed reply submissions on 26 April 2004.

On 15 April 2004 the Tribunal advised the parties that during the course of a privately funded flight from Nadi to Sydney on 2 April 2004, the Permanent Arbitrator took the opportunity to view the Overhead Crew Rest (OCR) or loft as it has been referred to, the upper deck and the location of jump seats in both the upper and main decks. The parties indicated to the Tribunal on 26 April 2004 that they did not wish to make any further submissions in relation to that matter or any other matter.

The disputes are essentially concerned with clause 18.4.6 of the Collective Agreement which deals with meal/rest seats and states:

"The company will provide crew meal/rest seats on all flights in excess of 8 hours duty. However, in the event of all the crew agreeing to give away rest seats for passenger use, flight attendants will be entitled for compensation of FJD 50.00 for that sector. The number of seats provided shall be at least one third of the crew complement".

Although the Union has raised the additional issue that the Employer’s actions amount to an attempt to amend the Collective Agreement and that as a result the Employer is in breach of clause 2 of the Collective Agreement, the terms of reference do not expressly raise this issue and the Employer’s submissions have proceeded on the basis that clause 18.4.6 does not represent an impediment to its plan for crew/rest arrangements on the 747-400 aircraft.

The meaning of clause 18.4.6 has only become an issue since the introduction of the 747 – 400 aircraft. In respect of the 737 series, the 767 series and the 747-200 aircraft, the implementation of clause 18.4.6 had not been the subject of any significant industrial disagreement except possibly the issue of fitting curtains to provide some privacy for crew whilst eating and resting. On all those aircraft, the cabin crew were allocated economy class passenger seats. However the 747-400 has what was referred to as a "loft" but which is more accurately known as the "Overhead Crew Rest" (OCR). This is located at the rear of the aircraft and is approached by walking to the rear of the left hand aisle.

The intention of clause 18.4.6 is to provide meal/rest seats for crew. The reference to passenger seats in the second sentence is no doubt based on the fact that the meal/rest seats at the time when the Agreement was signed on 3

September 1998 could only be made available from economy class passenger seats. The fact that the word passenger does not appear in the first sentence of
the clause leaves open the possibility that suitable meal/rest seating may be provided in the aircraft other than from the economy class passenger seats.

However, it is the Tribunal’s opinion that implied in clause 18.4.6 is the requirement that any meal/rest seating provided other than from economy class passenger seats must not result in any reduction or diminution in the working conditions of the crew.

Prior to the introduction of the 747-400 aircraft, the Employer published a Staff Notice which was, by implication, primarily for the attention of cabin crew. This Notice informed cabin crew that the 747-400 aircraft being leased from Singapore Airlines was configured to Singapore Airlines requirements, including 8 crew bunks and 2 seats in the loft. The Notice goes on to say that in order to comply with clause 18.4.6 of the Collective Agreement, it is planned to reconfigure the aircraft by removing the 8 bunks and adding a further 3 seats (making a total of 5) in the loft.

The Notice further says that because the aircraft was to be used on long haul flights, cabin crew should have the option of retaining the bunks. The Employer indicated that it would only reconfigure the aircraft once.

Importantly, the Employer then lists three options for the consideration of the cabin crew. They were:

"1. Retain 5 seats in the passenger section for crew rest/meals. If so, the bunks will be removed and the loft permanently sealed to reduce weight and increase aircraft payloads.

2. Remove bunks and replace them with 5 seats in the loft. This is fully compliant with all regulations.

1. Retain the 8 bunks and 2 seats in the loft and take meals in designated crew seats on the main and upper decks which are away from passenger view but not in a fixed crew block of 5 seats".

By a letter dated 5 February 2003, the Union replied to the Employer on behalf of the Cabin Crew Branch concerning the three options set out in the Staff Notice. There are three relevant paragraphs in that letter:

".... The Branch position is that crew meal/rest seats must be protected and provided as per our collective agreement and past practice.

This means that we would like the company to provide curtained off economy class passenger seats near the galley for crew meal/rest purposes .....

Whilst our entitlements to bunks arise on duties beyond 14 hours, we would appreciate if the bunks already fitted can be retained".

Putting aside the Union’s understanding of the meaning of clause 18.4.6, it is clear to the Tribunal that the thrust of the response indicated a preference for the first option put forward by the Employer. The request concerning the retention of the bunks was a matter which could quite properly have been disregarded by the Employer. The Union’s response should have resulted in negotiations to clarify what option 1 meant and what it didn’t mean.

The subsequent correspondence between the parties suggests that the Employer misconstrued the Union’s response and proceeded to implement option 2. This was not the intent of the Union’s response. As a result the Employer’s expectation is that cabin crew will take their meals in the seats provided in the loft or in the jump seats variously located in the upper and main decks.

The Tribunal accepts the evidence of Mr Sproul that the reconfiguration of the OCR in every respect complies with all relevant safety and regulatory requirements.

The loft is reached from the floor of the main deck via a stairway consisting of three spiral steps, a ladder consisting of a further three steps and then the floor of the loft. The steps are narrow. The ladder is steep. It is apparent that ascending is easier than descending which is quite difficult.

It is also apparent that taking meals up to the loft whether on a standard tray arrangement or in a meal box and then bringing the same back down to the main deck is at the very least an inconvenience to cabin crew and represents a diminution or reduction in working conditions compared with the arrangements that existed prior to the introduction of the 747-400.

Under the circumstances the provision of meal seats in the OCR (loft) does not comply with the spirit or the implied requirement of clause 18.4.6 of the

Collective Agreement. The Employer should continue to provide meal seats from the economy class passenger seating. The location of those seats is a matter for the Employer. The provision of curtains for privacy is a matter for further negotiation. The fate of the OCR is also a matter for the Employer as the crew can use the allocated seats for both meals and rest.

AWARD

The meal/rest seats provided in the OCR (loft) represent an inconvenience to cabin crew and as a result a diminution or reduction in working conditions.

The expectation on the part of the Employer that cabin crew will take their meals in the OCR (loft) or whilst sitting on the jump seats or whilst standing in the galleys does not comply with the spirit or implied requirement of clause 18.4.6.

The Employer should continue to provide meal seats from the economy class passenger seating on 747-400 aircraft.

DATED at Suva this 11^th day of May 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL